The Day After: Midnight On Franklin Street

WATERTOWN, Ma. — There was something very comforting about the sawhorses. There were three of them at each end of the loop that Franklin Street makes between Mt. Auburn Street and Walnut Street here. There were no metal fences. There were no concrete barriers. There was no razor wire. There was police tape, stretched by the cold and freshening wind as a front began to blow through, a chilly Saturday night becoming a cold Sunday morning. It was midnight on Franklin Street, and if you didn't know what had happened there the night before, you would see the sawhorses and think that a water main had broken, or that, maybe, they were patching potholes down the road. Probably a bunch of city workers, you'd think, three men to a shovel, and two of them with uncles on the governor's council. Featherbedding dickbrained layabouts. And that would be what you would think, until you looked past the sawhorses and down the road, and saw the cops moving silently in an out of small circles of light, the reflecting tape on their vests still visible as they moved back into the dark again. Still, the sawhorses were comforting. The ordinary was comforting. The mundane was comforting. It might as well have been a water main break on Franklin Street at midnight Saturday night.

The sawhorses were comforting because the events of the past week are now getting fed into a number of gigantic maws, none of which are likely to do the rest of us any good. They are being fed into the big media maw, with speculation now completely rampant as to what launched the Tsarnaev brothers on their crime spree. While Dzhokhar Tsarnaev was still at large, with a few notable exceptions — coughNewYorkPostcough — big media went out of their way to appear responsible. Now, though, with the younger suspect on a respirator at Beth Israel, all the shackles were off, and we spent the day hearing wild speculation of what may have been behind the murderous doings in and around Boston last week. The events also are being fed into the maw of big politics with the federal government invoking the "public safety" exception to the Miranda ruling in connection with a 19-year old who is, at this moment, breathing through a tube and who, anyway, by all the evidence available at this moment, appears to be still little more than Dylan Klebold with a funny name and a pulse.

(His older brother, Tamerlan, however, whom Dzhokar apparently ran over and killed while fleeing the firefight that erupted on Thursday night, seems to have been a different, tougher character. Of course, the fact that the Russians were concerned about Tamerlan is no surprise. They have good reason to worry about Chechen terrorism. If they asked the FBI to keep an eye on Tamerlan, it likely was because they were worried he was going to do something in Russia. It does not necessarily follow that the FBI should have known he was a threat here.)

But invoking the exception to Miranda keeps the "international terrorism" balloon aloft. (I don't even want to think about those gobshites on Teh Sunday Showz and the meal they're going to make of this.) It also gives Boston U.S. Attorney Carmen Ortiz a chance to make something of a career comeback. Most recently, Ortiz was being roasted over a slow flame for what appears to have been a bullshit prosecution of cyberactivist Aaron Swartz, which ended when Swartz killed himself. With Congress sniffing around her pursuit of Swartz, Ortiz's promising political career seemed to be considerably derailed. Now, though, she's been handed the biggest terrorism case since Zacarias Moussaoui. You can hardly expect her not to jump on this one with both feet. One of the worst things that ever happened to Dzhokhar Tsarnaev may have been Aaron Swartz's suicide. So this goes into the steroidal terrorism precincts of the Department of Justice, and that, which was good enough for Tim McVeigh and for the first World Trade Center bombers, still isn't good enough for John McCain and Lindsey Graham, and the deluded members of the courtier press who still believe that either one of those clucks is some kind of an authority on the subject, let alone a national leader. Dzhokhar Tsarnaev's a criminal defendant, not a soldier. He's a multiple murderer, not an enemy combatant, and he doesn't have to be an enemy combatant just because Huckleberry Closetcase is worried about a primary next time around. He also is, you may recall, an American citizen, and that ought to make all the difference.

The comfort of the ordinary. The comfort of the mundane. Let's just have a trial. Let's just have an open and honest trial, with all the evidence right there in the open, and not whispered piecemeal and half-baked out of Spookworld to Richard Engel or Barbara Starr. Let's have an open and honest trial with no showboating from an embattled U.S. Attorney, and all the evidence laid out there in good, honest cop-speak — "The suspect said..." "The suspect did..." (One of the most startling examples of this came during the sanity hearing granted serial killer Jeffrey Dahmer in Milwaukee when, reading from his own notes, one of the arresting officers testified, "The suspect stated it takes about an hour to boil a head.") We can do that here. When the British Crown sought to enforce the Writs Of Assistance in 1761, it was a Boston lawyer named James Otis who told the court:

Let the consequences be what they will, I am determined to proceed. The only principles of public conduct that are worthy of a gentleman or a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country.

And when, nine years later, a colonial court sought to convict British soldiers for their conduct in what was called The Boston Massacre, it was a Boston lawyer named John Adams who acted, essentially, as their public defender, arguing,

"I had no hesitation in answering that Council ought to be the very last thing that an accused Person should want in a free Country. That the Bar ought in my opinion to be independent and impartial at all Times And in every Circumstance. And that Persons whose Lives were at Stake ought to have the Council they preferred: But he must be sensible this would be as important a Cause as ever was tried in any Court or Country of the World: and that every Lawyer must hold himself responsible not only to his Country, but to the highest and most infallible of all Trybunals for the Part he should Act. He must therefore expect from me no Art nor Address, No Sophistry or Prevarication in such a Cause nor any thing more than Fact, Evidence and Law would justify."

These were British soldiers in the streets of Boston, firing on crowds. John Adams did not recognize a "public safety exception" to their right to counsel. We stood up to an empire here for the right to judge our own people for their own crimes by our own laws. We can do this thing here. Hell, we invented this thing here. Seeing Dzhokhar Tsarnaev walk into an ordinary courtroom in an ordinary courthouse on as ordinary as day as possible would be worth a hundred healing services, and a thousand well-sung National Anthems, and a million waving flags in terms of restating who and what we are. It would be as comforting as the sawhorses at either end of Franklin Street, where there might as well have been a water main break, as a chilly Saturday night turned into a cold Sunday morning, as one lone pedestrian chased his hat as it blew down the sidewalk in front of him. The cop at the end of Franklin Street didn't even turn around. He just wandered down into the dark, and then into the light again.

Charles P. PierceCharles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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